Plan to demote directors roils labor agency

The Trump administration’s efforts to reverse the direction of federal labor policy appear to have accelerated with a proposal to demote the senior civil servants who resolve most labor cases.

Under the proposal, those civil servants — considered by many conservatives and employers to be biased toward labor — would answer to a small cadre of officials installed above them in the National Labor Relations Board’s hierarchy.

The proposal could pave the way for a pronounced shift in the day-to-day workings of the agency, making it friendlier to employers named in complaints of unfair labor practices or facing unionization drives.

Peter Robb, the agency’s general counsel and a Trump appointee, outlined the proposal this month in a conference call with the civil servants, known as regional directors, according to a letter sent by the directors to Robb.

The regional directors and their staffs typically resolve more than 85 percent of the roughly 20,000 cases filed with the agency each year over disputed labor practices without involving the general counsel, the top enforcement official.

The proposal follows a series of aggressive changes in posture at the agency since last fall, when Republicans gained a majority on the five-member board.

In early December, a mere two weeks into his tenure, Robb released a memo announcing the end of many of his predecessors’ initiatives, including a campaign against employers who improperly classify workers as contractors, and featuring a long a list of hot-button issues on which regional directors were required to seek input from his office.

“New general counsels will at some point signal cases they want to look at,” said Wilma Liebman, a former chairwoman of the labor board. “But this was so sweeping and so fast that it was just kind of startling.”

That same month, the agency overturned a key Obama-era ruling that had made it easier to hold companies responsible for labor-law violations at companies they do business with, such as franchisees and contractors.

Robb came to his position after a career largely spent representing management, including handling part of the Reagan administration’s litigation against the air traffic controllers union that waged an illegal strike in 1981. Many labor historians say the government’s hard line in firing the controllers contributed to organized labor’s decline in subsequent decades.

The labor board’s general counsel is confirmed by the Senate. The counsel has independent authority as a prosecutor, derived from the National Labor Relations Act, and performs other duties on behalf of the agency’s board, which acts as its highest court of appeals.

Demoting the regional directors — there are 26, including two vacancies — and inserting a new group above them would most likely require board approval. The regional directors’ account suggested that the new officials would probably be civil servants as well, rather than political appointees.

Michael Lotito, a lawyer with the management-side firm Littler Mendelson, who has discussed the proposal with officials at the agency, said they had assured him that it was largely a response to budget cuts reflecting a significant decline over several decades in the number of labor charges filed.

He said some of the savings could come from staff reductions among managers and supervisors at the regional offices, achieved in part through attrition.

The agency itself said that “given budgetary issues, the general counsel is assessing the current organizational structure for possible changes,” but added, “No specific plan involving the restructuring of our organization has been developed.”

Labor advocates and even management-side lawyers often praise the professionalism of the regional directors, but critics consider them too sympathetic to workers and unions.

“Some are way more ideologically pro-union than others, but they all tend to be fairly ideological,” Lotito said. “The agency tends to promote — I think that it should — individuals who want to protect the rights of employees. But if you’ve been doing that all your life, you can miss the rights of the employer.”

The proposed changes appear consistent with a broader Trump administration suspicion of longtime civil servants. President Trump’s former chief strategist, Steve Bannon, called for the “deconstruction of the administrative state.”

During the administration’s first year, dozens of senior career officials resigned or retired from the State Department and the Environmental Protection Agency as many complained of being sidelined or ignored by political overseers.

The Interior Department reassigned a few dozen senior civil servants to posts that often made little use of their expertise. In one case, a top climate policy official was reassigned to the office that collects royalty payments from oil and gas companies. He quit not long after.

According to the NLRB regional directors’ letter, Robb said on the conference call Jan. 11 that the changes were necessary and independent of budget considerations — implying a lack of confidence in the directors’ ability to investigate and adjudicate allegations of labor-rights violations.

Robb, according to the letter, said the agency might hire a handful of district directors, each with authority over a portion of its 26 regions, and proposed lowering the regional directors’ rank within the Civil Service.

The letter expressed concerns that Robb was intent on “removing many of the core responsibilities of the sitting regional directors,” although it acknowledged that it was unclear how much authority he intended to shift to district directors, how many there would be and whether any regional offices would be closed or consolidated.

Lotito, the management lawyer who has discussed the concept with agency officials, said the idea was to keep most or all of the regional offices in place and allow management and labor to appeal decisions to the district directors.

“The regional directors are their own fiefdoms,” he said. “If there was an ability to go to a district director, who oversees eight regions, chances are that would drive consistency.”

At a Jan. 19 meeting with an American Bar Association committee whose members represent both management and labor, Robb argued that the reaction to his proposal was overblown.

According to someone familiar with the discussion, Robb acknowledged that he would need the approval of the agency’s board for any changes, and he said he would seek public comment as well as input from the regional directors.

In the meantime, the letter from the regional directors indicates that many may take Robb’s proposal as a cue to resign or retire, as some of their counterparts at the State Department, the Environmental Protection Agency and the Interior Department did.

“We believe the changes you suggest, including the removal of directors from the Senior Executive Service, will cause senior directors and managers, whose institutional knowledge is a valuable asset to the agency, to retire sooner than they otherwise intended,” the directors wrote to Robb. “As you can imagine, the information you provided to the regional directors has created much uncertainty and has disheartened us.”